Thrasher v. City of Atlanta
| Decision Date | 20 February 1934 |
| Docket Number | 9607. |
| Citation | 173 S.E. 817,178 Ga. 514 |
| Parties | THRASHER v. CITY OF ATLANTA et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The allegations of the petition were sufficient to show the liability of all defendants for the acts of each, provided a cause of action was stated.
2. By the Act of August 23, 1927 (Ga. Laws 1927, p. 779), the General Assembly expressly authorized and empowered the city of Atlanta to establish and operate municipal landing fields for the reception, storage, and operation of airplanes. By this franchise aviation was recognized as a lawful business and also as an enterprise affected with a public interest. Upon the establishment of any such airport by the municipality, all persons using the same in the manner contemplated by law are within the protection and immunity of the franchise granted to the municipality. An airport is not a nuisance per se, although it might become such from the manner of its construction or operation.
3. Mere apprehension of injury from the falling of planes is not sufficient to authorize an injunction against aerial navigation over the property of the complainant.
4. The unnecessary and improper creation and spreading of dust by the operation of such airport, with the result that dust in excessive and unreasonable quantities permeated the atmosphere in the vicinity of the plaintiff's home and impaired the health of the plaintiff's wife necessitating the expense of medical treatment, and with the further result that dust was deposited in like quantities in and about the plaintiff's dwelling house, whereby the comfort and use of his house was injuriously affected, would constitute a nuisance, affording ground for the recovery of damages and also for the grant of an injunction.
5. Aerial navigation over the land of another cannot be said to be a trespass without taking into consideration the question of altitude. It may or may not be a trespass according to all the circumstances including altitude; and even when the act does not constitute a trespass, it may amount to a nuisance as where it occasions hurt, inconvenience, or damage to the occupant below. In the instant case the plaintiff's allegations were insufficient to show that the flying of aircraft through the space above his land constituted either a trespass or a nuisance.
Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.
Petition by Clovis thrasher against the City of Atlanta and others. To review a judgment dismissing the petition on general demurrer, severally filed by defendants, plaintiff brings error.
Reversed.
Chas W. Anderson and Joseph W. Weaver, both of Atlanta, for plaintiff in error.
J. L Mayson, E. Smythe Gambrell, Haas, Gambrell & Gardner, and Edgar Chambers, Jr., all of Atlanta, R. S. Pruitt, of Chicago, Ill., and Chadbourne, Stanchfield & Levy, of New York City, for defendants in error.
On October 17, 1931, Clovis Thrasher filed a suit for injunction and damages against the city of Atlanta and a number of companies engaged in the business of aviation. Several individuals were also made parties defendant. The plaintiff alleged that he owned and occupied a residence in the vicinity of Candler Field, an airport established and controlled by the city of Atlanta, and that the city and the other defendants were so conducting the airport that it constituted a nuisance, with resulting damage to the plaintiff. The petition was several times amended and was finally redrafted by an amendment allowed subject to demurrer on January 31, 1933. Two other amendments were allowed on like condition on February 10, 1933. These three amendments constituted the plaintiff's case as finally presented to the trial court. The petition as thus amended was dismissed on general demurrers severally filed by the city of Atlanta and other defendants, and the plaintiff excepted.
The plaintiff alleged general damage in the sum of $50,000. The only item of special damage was the claim of $2,500 alleged to have been expended for medical care and attention to his wife by physicians, and for medicines. The plaintiff also alleged demand upon the city of Atlanta in accordance with the Civil Code (1910), § 910. Among the prayers were the following: "That the said nuisance be abated and enjoined temporarily or that defendants be required to give bail to protect the plaintiff and his family as to their lawful and constitutional rights at the hands of defendants in the premises herein related;" and "that in the absence of adequate compensation, defendants do be permanently enjoined, and that he do have and recover his lawful damages and costs of this action." The specific matters about which the plaintiff made complaint were (1) danger; (2) noise; (3) dust; and (4) flights by airplanes above the plaintiff's land. The petition was drawn at great length, and in view of the abundance of irrelevant and immaterial matter and needless repetition, the allegations will not be stated here in full, but reference will be made only to such parts as are necessary to an adjudication of the specific questions involved.
1. It was alleged that the plaintiff bought and established his home in 1924, and that the airport was established in 1927; that the airport is real property bought by the city of Atlanta "for the common purpose, scheme, device and plan as it is now used and occupied by all of the said defendants as such airport"; that the city of Atlanta operates, maintains, supervises, and controls "all operations at said airport"; and that the activities of all of the defendants as stated in the petition "are in pursuance of common plan and purpose of the said airport"; the "said defendants being joint and several tort-feasors in the following premises, acting according to and in pursuance of a concerted plan, scheme and device in concert, jointly and severally to establish, maintain and operate an airport for private and proprietary purposes, to wit: Candler Airport in the said county and State for private convenience and private gain of the said municipality and the other named defendants herein." By these allegations it is sought to hold the defendants jointly and severally liable for the acts of each, and, in view of the act of 1927 hereinafter referred to, they were as against general demurrer sufficient for that purpose, provided liability is shown. Langley v. City Council of Augusta, 118 Ga. 590, 597, 45 S.E. 486, 98 Am.St.Rep. 133; Scearce v. City of Gainesville, 33 Ga.App. 411 (3), 126 S.E. 883; City of Macon v. Roy, 34 Ga.App. 604, 130 S.E. 700; Trawick v. Chambliss, 42 Ga.App. 333 (2), 156 S.E. 268. While the quoted allegations were not contained in a single paragraph, but are gleaned from the petition as a whole, they may be considered as alleging joint and concerted action as indicated.
2. By the Act of August 23, 1927 (Ga. Laws 1927, p 779), the General Assembly authorized and empowered the city of Atlanta "to purchase, own, and operate municipal landing fields for the reception, storage, and operation of airplanes; also for the use of the Government in the Air Mail Service, and such fields may be located either within or without the limits of said city and when so purchased and defined, the City of Atlanta is given police jurisdiction over the land so acquired, except as to any part thereof which may be located in some other municipality." Section 4, p. 780. The same statute further (sections 4A, 4E, pp. 781, 782) provided that any land or locations leased, purchased, or operated by the city of Atlanta as a municipal landing field shall be under the exclusive jurisdiction and control of that municipality, declaring, however, that the city would not be authorized to establish any such landing field at a greater distance than 25 miles from the center of the city as then defined. In 1933, the Legislature enacted other laws in regard to aircraft and aviation, but since the petition in the instant case was filed in 1931 and all amendments thereto were presented before the passage of the acts of 1933, we will consider the case without reference to the later statutes. See Ga. Laws 1933, pp. 99, 102.
By the act of 1927 aviation was recognized by the General Assembly of this state as a lawful business, and it would have been so recognized by this court in the absence of this statute. This court will take judicial notice of the fact that airplanes have been used for several years in this state and throughout the country in the transportation of passengers and mail that large sums of money have been devoted to the development of aircraft as a commercial industry; and that it has become an important, if not, indeed, a well-nigh indispensable, public utility. Wentz v. Philadelphia, 301 Pa. 261, 151 A. 883; Hesse v. Rath, 249 N.Y. 436, 164 N.E. 342. The act of 1927 not only recognized that the business of navigation in the air is a lawful enterprise, but impliedly ascribed to it a public interest, in authorizing the city of Atlanta, a municipal corporation, to establish landing fields "for the reception, storage, and operation of airplanes." It is apparent from the plaintiff's allegations that the city of Atlanta in establishing Candler Field as a port for airplanes was acting under express authority from the lawmaking power, and such being the case, all persons using the airport in the manner contemplated by law are within the protection and immunity of the franchise so granted to the municipality. The airport is not a nuisance per se, although it might become such from the manner of its construction or operation. City of Quitman v. Underwood, 148 Ga. 152, 96 S.E. 178. In the absence of anything to the contrary, it should be presumed that such airport is constructed and operated in the...
To continue reading
Request your trial